Drinking in Public

What is the name of your state? California

I was recently cited for possession of an open alcoholic container in public. The incident occurred at 11:25 PM on September 1st, 2006 on the sidewalk in front of a local bar in Pacific Beach, a community of San Diego, CA. The issuing officer was undercover and never presented any sort of identification. The container was a 32 oz. bottle of beer, about half of which had been consumed, and was in a brown paper bag at the time. I was not drinking when the cop approached me, but I was holding the open container. I was under the impression that drinking in public was legal so long as the container was kept concealed (i.e. brown paper bag), but I guess I was wrong. The actual law of which I was found in violation (this is noted on the citation) is California Business and Professions Code, Section 25620 (a), which reads:

Any person possessing any can, bottle, or other receptacle containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed, in any city, county, or city and county owned park or other city, county, or city and county owned public place, or any recreation and park district, or any regional park or open-space district shall be guilty of an infraction if the city, county, or city and county has enacted an ordinance that prohibits the possession of those containers in those areas or the consumption of alcoholic beverages in those areas.

Anyway, the cop checked the "misdemeanor" box on the ticket and referred me to the San Diego Misdemeanor Arraignment Department. However, I've got two friends who were cited in violation of the same law about a year ago, both of whom were given infractions and required to pay fines of about $150.

My questions are as follows:

1. Is the crime an infraction or a misdemeanor? If it's an infraction, does the cop have the power to make it a misdemeanor based on the circumstances?

2. Is drinking out of a paper bag really illegal? Do cops have the right to confiscate beverages that are concealed?

3. Was the cop required to show some sort of ID before detaining me and confiscating my beverage? If not, could this be a defense?

Thanks so much for any advice anyone may have that could shed some light on this for me.

1. Is the crime an infraction or a misdemeanor? If it's an infraction, does the cop have the power to make it a misdemeanor based on the circumstances?

The officer erred - it is an infraction. However, had he cited you for the SD Municipal Code, it would have been a misdemeanor... you're lucky.

2. Is drinking out of a paper bag really illegal? Do cops have the right to confiscate beverages that are concealed?

They have a right to confiscate contraband. Possession of alcohol where prohibited is contraband. The fact that you had a paper bag over it simply helped him ID the fact that it was alcohol you were holding.

3. Was the cop required to show some sort of ID before detaining me and confiscating my beverage? If not, could this be a defense?

Apparently you acquiesced to his detention so the issue is moot. It woul donly be a defense had you ignored him, walked away, or otherwise failed to comply with his instructions. It is NOT a defense against your possession charge.

FreeAdvice® has been providing millions of consumers with outstanding advice, free, since 1995. While not a substitute for personal advice from a licensed professional, it is available AS IS, subject to our Disclaimer and Terms & Conditions Of Use.

IMPORTANT NOTICEFreeAdvice.com has been providing millions of consumers with outstanding information and "advice" free since 1995 with thousands of professionally prepared and reviewed articles, questions and answers in more than 100 categories in the Question and Answerpages at FreeAdvice.com. THE VIEWS EXPRESSED ON THIS AND OTHER FORUM PAGES WERE NOT REVIEWED BY THE EDITORIAL STAFF OR ATTORNEYS AT FREEADVICE.COM and are provided AS IS. The FreeAdvice Forums are intended to enable consumers to benefit from the experience of other consumers who have faced similar legal issues. FreeAdvice does NOT vouch for or warrant the accuracy, completeness or usefulness of any posting on the Forums or the identity or qualifications of any person asking questions or responding on the Forums. Use of the Forums is subject to our Disclaimer and our Terms and Conditions of use which prohibit advertisements, solicitations or other commercial messages, or false, defamatory, abusive, vulgar, or harassing messages, and subject violators to a fee for each improper posting. All postings reflect the views of the author but become the property of FreeAdvice. Information on FreeAdvice or a Forum is never a substitute for personal advice from an attorney licensed in your jurisdiction you have retained to represent you. To locate an attorney visit AttorneyPages.com. Copyright since 1995 by Advice Company. All Rights Reserved.